전자증거의 동일성⋅무결성⋅신뢰성 개념과 진정성 증명으로의 통합

초록

With the full-scale implementation of the criminal electronic litigation system in 2025, significant changes are anticipated in criminal procedures. A noteworthy aspect of evidence is that a vast amount of evidence and documents will be submitted and preserved in file format. The aforementioned evidence is electronic and classified as copies. Traditionally, identity with the original, integrity, and reliability have been recognized as essential prerequisites for the use of such electronic evidence. Given the increasing number of cases challenging the admissibility of evidence in criminal courts, a significant portion of future electronic criminal proceedings will likely be devoted to proving the identity of the evidence with the original. However, it is not desirable to devote excessive time to the determination of admissibility itself, rather than to fact-finding or sentencing deliberations. It is anticipated that these issues could be mitigated by expanding the concept of ‘original' to include duplicates and printouts. To address the phenomenon where the distinction between originals and copies becomes relativized－particularly for evidence created or transmitted via online software－it is necessary to treat certified copies, printouts, and duplicates as originals by broadening the legal definition. Furthermore, attention must be paid to the current practice where the identity and integrity of electronic evidence are integrally proven based on hash values. Identity and integrity are closely related concepts, often described as two sides of the same coin. Recent judicial precedents have made this distinction even more difficult by viewing hash values as simultaneous proof of both. As the independent meanings of identity, integrity, and reliability－the procedural requirements under litigation law－are being lost, it is appropriate to unify the subject of proof under the comprehensive concept of “authenticity”. If the actual process of proof is singular, the legal subject of proof should also be unified.

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